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The COVID-19 pandemic has understandably put a strain on the capability of district courts to move cases forward as planned. In the face of this reality, some district courts are encouraging attempts for mediation. However, in some instances, even scheduled in-person mediations were vacated to avoid the potential for exposure to COVID-19.
Williams-Sonoma, Inc. v. Amazon.com, Inc. – The U.S. District Court for the Northern District of California in Oakland entered a Stipulation and Order For Stay And Subsequent Dismissal, after the parties entered into a confidential final, binding, and fully executed settlement agreement and that such settlement agreement that included obligations requiring time to perform. In requesting a ninety day extension, the parties argued that good cause exists for the stay because it is in the interests of judicial efficiency to further the goal of dismissal and final resolution of the litigation without further burdening the resources of the Court during the COVID-19 pandemic. (Case No. 3:18-cv-07548; November 2, 2020).
St. Croix Surgical Systems, LLC v. Cardiva Medical, Inc. – The U.S. District Court for the Northern District of California in San Francisco sua sponte issued a General Order For All Pending Civil Cases Before Judge Richard Seeborg dated May 18, 2020, stating that due to the high uncertainty created by the COVID-19 pandemic “it would seem to be an optimal time for the parties to initiate or renew an exploration of possible settlement or some other form of alternative dispute resolution.” The parties were instructed to meet and confer telephonically within 30 days of the date of the Order to discuss the prospect of case resolution and file a joint report regarding the status of the case. (Case No. 3:18-cv-04426; May 18, 2020).
The General Order For All Pending Civil Cases Before Judge Richard Seeborg, dated May 18, 2020, has also been docketed in the following patent cases before the U.S. District Court in the Northern District of California:
Sorensen v. Vision Plastics Mfg., Inc. d/b/a Snapo, et al. – The U.S. District Court for the Southern District of California in San Diego sua sponte vacated an order scheduling a mandatory settlement conference, stating that the conference would be "futile" without the physical presence of the parties. (Case No. 3:19-cv-00738, presiding before District Judge Dana M. Sabraw; March 26, 2020).
Orthopaedic Hospital v. DJO Global, INC. and DJO Finance, LLC – The U.S. District Court for the Southern District of California in San Diego granted the parties’ joint request to modify the Mandatory Settlement Conference scheduled for September 15, 2020, allowing the Conference to occur via videoconference rather than in-person, as previously ordered by the Court. Originally, the Court had required personal attendance of “all parties, party representatives, including claims adjusters for insured defendants, and the primary attorney(s) responsible for the litigation.” However, in light of Chief District Judge Larry A. Burns’s Amended Order in response to the COVID-19 pandemic excusing personal appearances in civil court proceedings, the Court ordered that the Conference be conducted via Zoom video conferencing and provided instructions on how to participate. Specifically, the Court explained the benefits of Zoom’s functionalities, which allow the Court to divide participants into separate “Breakout Rooms” for confidential sessions where the Court will be able to communicate with participants from a single party in confidence, similar to in-person settlement conferences. Breakout Rooms also allow parties to confer with counsel confidentially without the Court. The Court also made clear its expectations regarding professionalism: “All participants shall display the same level of professionalism during the Settlement Conference and be prepared to devote their full attention to the Settlement Conference as if they were attending in person, i.e., cannot be driving while speaking to the Court.” (Case No. 3:19-cv-00970, presiding before District Judge Janis L. Sammartino; August 18, 2020).
Ingevity Corp., et al. v. BASF Corp. – The U.S. District Court for the District of Delaware in Wilmington sua sponte decided in an Oral Order to conduct the mediation scheduled for June 22, 2020 telephonically. The Court ordered that plaintiff’s counsel shall make arrangements for a dial-in number for all counsel, including the Judge, to use throughout the mediation process should the Judge wish to have discussions with all parties. In addition, Plaintiffs counsel was ordered to arrange for a separate line for their private discussions with the Judge and, likewise, defendant’s counsel was ordered to arrange for a separate line for their private discussions with the Judge. Previously, in a March 30, 2020 Order, the presiding Judge had extended the deadline for completing expert depositions to May 29, 2020 and further indicated that “[t]he parties should prepare to do the six expert depositions that are at issue by means other than in-person if governmental restrictions continue to make that necessary.” At that time the Court noted that if the current trial date of September 14, 2020 is not able to be maintained, “it may not be able to be rescheduled to a date certain for a long time, maybe until 2022.” (Case No. 1:18-cv-01391, presiding before District Judge Richard G. Andrews; March 30, 2020 and May 11, 2020).
Best Medical International, Inc. v. Varian Medical Systems, Inc. et al. – The U.S. District Court for the District of Delaware in Wilmington entered an Order Governing Mediation Conference and Mediation Statements, scheduling the Conference for October 2, 2020 at 10:00 a.m., at which time “[a]ll required participants are to report at this time by video conference and to remain available until excused by the Court.” The Order states that “[c]ounsel shall arrange three separate video conference lines to use throughout the mediation process when the mediation begins: (i) a dedicated line for Plaintiffs; (ii) a dedicated line for Defendants; and (iii) a joint line available for both sides should the Judge wish to have discussions with all parties. All lines should remain open for use by counsel and the Court until the mediation is concluded.” On August 20, 2021, the Court issued an Order scheduling the mediation conference to reconvene on October 12, 2021 at 1:00 p.m. via video conference. The Court also indicated that the previous Order governing mediation remains in effect. (Case No. 1:18-cv-01599, presiding before District Judge Maryellen Noreika; August 20, 2020 and August 20, 2021).
Delta T, LLC v. Dan's Fan City, Inc. – The U.S. District Court for the Middle District of Florida in Tampa issued an order directing the parties to file a Motion For Leave to Reschedule Mediation Conference by October 16, 2020. The parties were scheduled to mediate on October 6, 2020, but filed a notice of mediation to be held on December 17, 2020. Although the Court had previously extended the dates in the Case Management and Scheduling Order due to the COVID−19 pandemic on April 9, 2020, the Court did not alter the date of the scheduled second mediation conference. The Court reminded the parties that they “may not unilaterally reschedule the mediation conference − a motion must be filed, and leave of Court obtained." On November 12, 2020, the Court granted the parties’ joint Motion for Leave to Conduct Mediation via Videoconference. The parties wanted to avoid having to select another mediator since the current one was refusing to conduct in-person mediations due to the ongoing COVID-19 pandemic and concerns over in-person contact through meetings or travel, preferring to take precautions to limit in-person contact. (Case No. 8:19-cv-01731; October 9, 2020 and November 12, 2020).
Apalone, Inc. v. Kranos Corp. d/b/a Schutt Sports – The U.S. District Court for the Central District of Illinois in Springfield cancelled the April 28, 2020 telephonic status conference in response to the court’s Amended General Order 20-01 entered on March 18, 2020 by Chief District Judge Sara Darrow regarding the COVID-19 pandemic, as well as the pending opposed motion to stay. The parties were directed to file a written joint statement “as to whether both parties want the court to set a mediation” with Magistrate Judge Schanzle-Haskins, and, if so, a telephonic scheduling conference will be set. (Case No. 3:19-cv-03027, presiding before District Judge Sue E. Myerscough; April 9, 2020).
Blazer v. Chrisman Mill Farms LLC – The U.S. District Court for the Eastern District of Kentucky in Lexington set aside an order to show cause dealing with unresponsiveness of counsel regarding the scheduling of a settlement conference, after the parties finalized a time for the settlement conference. Although the Court agreed that the COVID-19 pandemic has made court proceedings difficult to schedule, it noted that the need for “timely communication is imperative” and the Court “should not have [to] continuously track down counsel in order to schedule a settlement conference.” (Case No. 5:17-cv-00430, presiding before District Judge Robert E. Weir; June 4, 2020).
Bio−Rad Lab., Inc., et al. v. Stilla Tech., Inc., et al. – The U.S. District Court for the District of Massachusetts in Boston entered an electronic notice setting an Alternative Dispute Resolution Hearing for September 28, 2020 at 10:00 a.m. The notice indicated that the Hearing would be conducted via video conference and that counsel of record would receive a video conference invite at the email registered in CM/ECF. The notice further indicated that if the parties have “technical or compatibility issues with the technology,” they should notify the session’s courtroom deputy. (Case No. 1:19-cv-11587, presiding before District Judge William G. Young; August 20, 2020).
Nanografix Corporation v. Pollard Banknote Limited – The U.S. District Court for the Eastern District of Michigan in Ann Arbor issued an Order For Mediation, ordering the parties to undertake mediation proceedings with Honorable Gerald E. Rosen (Ret.). The Court empowered Judge Rosen to make the following determinations regarding the mediation proceedings: (i) the format; (ii) the number of sessions; (iii) the appropriate persons who must attend, aside from counsel, it being understood that such representatives must include persons with full settlement authority and that attendance may be virtual due to the limitations created by the COVID-19 pandemic; (iv) the location or, if digital, the online platform to be used; and (v) all date(s). (Case No. 5:19-cv-10624; February 23, 2021).
Centerline (Windsor) Ltd. et al v. JR Automation Technologies, LLC – The U.S. District Court for the Western District of Michigan in Grand Rapids denied plaintiffs’ Motion To Extend the Deadline for Mediation, in which plaintiff argued the deadline should be reset, in part, because of COVID-19 pandemic travel restrictions precluding travel of its corporate representatives from Canada to attend in person and plaintiff believes “it would be far more productive for the parties to delay mediation until after the Court issues its claim construction ruling.” In denying the Motion, the Court stated that “Mediators are finding that ZOOM sessions are at least as productive as face-to-face ones and it almost is never true that rulings on one part or another of a patent case lead to resolution.” (Case No. 1:19-cv-00194; October 21, 2020).
Wilson, et al. v. Corning, Inc. – “In recognition of the current efforts locally and nationally to protect persons from unnecessary potential exposure to COVID-19,” the U.S. District Court for the District of Minnesota in St. Paul sua sponte ordered the parties’ in-person settlement conference scheduled for March 25, 2020, be conducted remotely. Due to the ongoing COVID-19 pandemic, the Court issued a Notice on January 13, 2021 stating that the settlement conference, currently set for February 10, 2021, will not take place in person. Instead, the settlement conference “will take place by alternative means, such as participation by phone or video conference.” The Court further indicated that a party may request the conference be rescheduled if the party is not able “to participate by alternative means or have health concerns about such participation.” In an Amended Order For Settlement Conference, the conference was rest to be held on April 21, 2021 at 10:00 a.m. According to the Order each counsel who will actually try the case and each party, with settlement authority, must be physically present in the courthouse and “electronic availability shall not be deemed to be in compliance with [the] Order.” On March 19, 2021, the Court issued an Order indicating that due the COVID-19 pandemic the settlement conference will not take place in person but rather by alternative means. (Case No. 0:13-cv-00210, presiding before Senior District Judge Donovan W. Frank; March 17, 2020, January 13, 2021, January 21, 2021 and March 19, 2021).
Au New Haven, LLC f/k/a Uretek LLC, et al. v. YKK Corp. – In light of an Order advising the parties that the currently-scheduling trial date may be moved to another date because “a criminal trial has been scheduled for the same date [and] because such trials enjoy priority under the Court’s internal processes”, the U.S. District Court for the Southern District of New York in Manhattan directed the parties to schedule a settlement conference if it would be productive. The Court noted that it “will likely be unable to accommodate last-minute requests for settlement conferences, and the parties should not anticipate that litigation deadlines will be adjourned in response to late requests for settlement conferences.” On August 2, 2021, the Court issued a Settlement Conference Order indicating that a settlement conference has been scheduled from August 11, 2021 at 10 a.m., and it will be held telephonically. (Case No. 1:15-cv-03411, presiding before District Judge Gregory H. Woods; June 16, 2021 and August 2, 2021).
Cutsforth, Inc. v. Lemm Liquidating Co., LLC, et al. – The U.S. District Court for the Western District of Pennsylvania in Pittsburgh referred the case to Judge Robert J. Colville for Settlement/Mediation purposes only. The mediation was scheduled to be held via videoconference on September 15, 2020 at 10:00 a.m. (EDT). The Court indicated that “[h]aving a client, insurance carrier, or lead attorney with authority available only by telephone, while not preferred, is an acceptable alternative, given the present circumstances surrounding the COVID-19 pandemic.” Judge Colville issued a further order indicating the upcoming September 15, 2020 Mediation (Settlement) Conference will be conducted entirely by video, using the “Zoom” app, with both Counsel and the Court participating remotely. The Settlement/Mediation Conference was held on September 15, 2020 via video-conference, but the matter was not resolved between the parties. (Case No. 2:17-cv-01025, presiding before District Judge Cathy Bissoon; July 6, 2020, July 8, 2020, July 31, 2020 and September 15, 2020).
Eidos Display, LLC, et al. v. AU Optronics Corp., et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division sua sponte vacated its March 16, 2020 Order requiring in-person mediation in Dallas, Texas, and ordered mediation via videoconference to be completed within seven (7) days, by March 27, 2020. “In light of rapidly evolving developments related to the COVID-19 virus… the Court is persuaded that an appropriate level of caution counsels against such travel at this time.” Notably, in the (now vacated) March 16, 2020 Order, which denied the parties’ original joint request for mediation via videoconference, Chief Judge J. Rodney Gilstrap wrote that “[m]ediation is one of those processes where direct human communication and interaction play a critical role and which do not effectively lend themselves to telephonic or remote video alternatives.” (Case No. 6:11-cv-00201; March 20, 2020).
Whirlpool Properties, Inc., et al. v. Asscon Int’l Co. Ltd., LLC, et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division sua sponte assigned a mediator and further ordered the completion of mediation within 45 days of the order. (Case No. 2:19-cv-00151; March 27, 2020).
Mician et al v. Catanzaro et al.– The U.S. District Court for the Eastern District of Virginia in Norfolk issued an Order staying the proceedings until the Hawaii Court can issue its ruling regarding the existence and enforceability of certain settlement terms agreed to by the parties. On December 7, 2020, the Hawaii court postponed that trial date, in part due to the COVID-19 pandemic, setting the settlement conference for February 10, 2022 and the trial date for April 11, 2022. The Virginia case had been scheduled for a June 1, 2021 trial, but it conflicted with other scheduled trials, including criminal trials that take precedence. The Virginia Court decided a stay was appropriate considering the status of the related Hawaii litigation, the fact that plaintiff chose the Hawaii Court to first enforce the settlement, and principles of judicial efficiency. (Case No. 2:179-cv-00548; April 26, 2021).
Trans-Radial Solutions, LLC v. Burlington Medical, LLC, et al. – The U.S. District Court for the Eastern District of Virginia in Norfolk ordered that all lead counsel are required to appear for a settlement conference to be remotely held on July 6, 2020 at 9:30 am (EDT) via Zoomgov pursuant to the Temporary Emergency Provisions issued by the Eastern District of Virginia in light of the COVID-19 pandemic. (Case No. 2:18-cv-00656, presiding before District Judge Raymond A. Jackson; May 29, 2020 and June 4, 2020).